How Many Criminal Cases Registered Across Country For Pronouncing 'Triple Talaq' ? Supreme Court Asks Union

A bench comprising Chief Justice of India Sanjiv Khanna and Justices Sanjay Kumar passed the direction while hearing a batch of petitions filed by Muslim organisations challenging the constitutionality of the 2019 Act, which criminalises the pronouncement of triple talaq.

The bench asked the Union to give the total number of FIRs registered under Sections 3 & 4 of the Act.

During the brief hearing, Solicitor General of India Tushar Mehta submitted that penalising an activity is something which was purely within the domain of legislative policy. Addressing the argument that the Act was imposing disproportionate punishment, SG Mehta said that the maximum punishment prescribed is only three years imprisonment, whereas many other legislations protecting women's rights prescribe a higher punishment.

Advocate Nizam Pasha,for petitioners, submitted that the "mere utterance of words (talaq thrice)" has been criminalised. SG Mehta said that there are provisions like Section 506 IPC which penalise utterances.

CJI observed that even if triple talaq is pronounced, it does not lead to a valid divorce, and the relationship between the wife and the husband continues.

"If the divorce itself is not recognised, the relationship then continues and no separation. But now you have penalised the very act of pronouncing it....we want the list of cases all over India where FIRs are filed, now in all states FIRs are centralised, just give us a list of that," CJI told the SG.

Pasha argued that the Act was resulting in discrimination against the Muslim community as the abandonment of a wife by a man belonging to any other community was not treated as an offence.  Senior Advocate MR Shamshad, for petitioners, submitted that the issue can be handled by the existing domestic violence laws and a separate criminal law was unnecessary. "In matrimonial cases, even if the wife is beaten up, it takes months to register an FIR. Here, FIR is registered for simple pronouncement," he said.

"In no civilised section, such a practice is there," SG submitted.

CJI said that the petitioners were not arguing for making triple talaq valid but was opposing its criminalisation.

"I am sure none of the lawyers here are saying that the practice is correct, but what they are saying is whether it can be criminalised when the practice is banned and no divorce can take place by uttering talaq three times at once," CJI said.

In the order, the bench asked the Union to submit the total number of cases pending u/s 3 and 4 of the Muslim Women Protection of Rights of Marriage Act 2019 and the data on the FIRs registered in the rural areas.

Parties have also been asked to give their written submissions.

In 2017, a Constitution Bench of the Supreme Court had declared triple talaq to be illegal and void. In 2019, the Parliament passed the Act.

Notably, Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 provides that :

“3. Talaq to be void and illegal.—Any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.”

Whereas, the Punishment for pronouncing Talaq under Article 4 prescribes imprisonment of the divorcing husband for a period of 3 years along with a fine

“4. Punishment for pronouncing talaq.—Any Muslim husband who pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.”

In August 2019, the Supreme Court issued notice to the Union on a batch of petitions challenging the constitutional validity of the 2019 Act.

Samastha Kerala Jamiathul Ulama, Jamiat Ulama-i-Hind, Muslim Advocates Association( Andhra Pradesh) etc. have filed the previous petition.

The petitioners had submitted that the Act has introduced penal legislation, specific to a class of persons based on religious identity. It is causative of grave public mischief, which, if unchecked, may lead to polarization and disharmony in society. I

As per their grounds, no circumstance requiring the enactment of the Act existed since such a form of divorce had already been declared unconstitutional by the Apex Court. Thereby, such a pronouncement was non-est in law and a marriage would subsist even after the said pronouncement. It was further submitted that the Act has also turned a blind eye towards the plight of under trials and the overburdened judiciary by enacting a superfluous Act.

Further, it stated that marriage as per Islamic Law was a civil contract and 'talaq' was a mode to repudiate the contract. Therefore, the imposition of criminal liability for a civil wrong was in clear violation of the Fundamental Rights of Muslim men.

Additionally, it was pointed out that Desertion, which plagues all the communities, has not been criminalized and thus the Act is discriminatory against Muslim husbands and is, in the absence of an intelligible differentia, violative of Article 14 of the Constitution.

It was contended that the Supreme Court had already declared the practice of Triple Talaq as unconstitutional in Shayara Bano v. Union of India & Ors., (2017) 9 SCC 1 and thus, the utterance of the words, whether by a Muslim or person of any other community, is equally irrelevant. However, the Act entails penal provisions only against the utterance of Triple Talaq by a Muslim husband and it is discriminatory in nature, so far as it is specific to a class of persons based on religious identity.

Case Details: SAMASTHA KERALA JAMIATHUL ULEMA AND ANR. Versus UNION OF INDIA W.P.(C) No. 994/2019 and Connected Matters

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